[2] In a case where Gap corporation filed a claim for damages for non-performance or tort against Byung corporation which transported the cargo by asserting that the cargo imported by Eul corporation from Eul corporation was damaged during transportation, the case holding that the law of the Republic of Korea (the Civil Act and the Commercial Act) shall be the governing law as to the carrier's non-performance liability and tort liability between Gap corporation and Byung corporation

[2] In a case where Gap corporation filed a claim for damages for non-performance or tort against Byung corporation which transported the cargo by asserting that the cargo imported by Eul corporation from Eul corporation was damaged during carriage, the case holding that Byung corporation is the law of the Republic of Korea (the Civil Act and the Commercial Act) governing the liability of the carrier for non-performance, the establishment and effect of tort, and the liability for damages of Byung corporation, since Byung corporation is a marine transportation business entity and is a Korean corporation, and it has a domicile in the Republic of Korea as a Korean corporation, and the place of conclusion of a charter contract is China, but the most closely related to the contract is the Republic of Korea, and the place of damage is the Republic of Korea, and the legal interests and interests of Gap corporation which is infringed thereby are also the Republic of Korea.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

A. The Plaintiff intended to import 31,250 tons (hereinafter “instant cargo”) from HUAFEI INTNAL INDIND COMD COMD COMD CO (hereinafter “TD”); hereinafter “HGNSI CAL 1,248.63 weeks (hereinafter “instant cargo”) in 1,250 tons (hereinafter “instant cargo”).

B. On April 10, 2012, on the part of the Defendant and the Defendant entered into a charter party to transport the freight of this case from the port of the Republic of Korea in the U.S., and the Defendant, at the time, issued a bill of lading of which the consignor, the consignee, the Defendant, the State of the shipment in China, and the U.S. is the U.S. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P. P., P. P. P. P., P. P. P. P. P., P. P. P. P., P. P. P. P. P.

C. The Defendant, as an owner or operator of a carphy (M/V KPATY, hereinafter “instant vessel”), transporting the instant cargo, operates a maritime transport business, etc.

D. On April 14, 2012, the instant vessel arrived at the Ulsan Port on April 23, 2012 after departing from the China Port of Panan Sea.

E. At the time of arrival of the instant vessel at the port of Ulsan, the instant cargo was milked into the sea through which it was found to have been milked (hereinafter “the instant accident”) with the 184.79 tons, and the remainder 1,063.84 tons was taken over at the Han National Tech Co., Ltd. (hereinafter “Korea National Tech”).

F. On April 27, 2012, Korea National Examination Board (Korea National Examination Board) put 179.31 tons of the above 1,063.84 tons in the production of a product and requested the Plaintiff to return the entire quantity of the product and returned the remainder 884.53 tons.

G. On July 11, 2012, the Plaintiff sold the remaining article 884.53 tons to USD 59,263.51, among the instant cargo.

[Ground of recognition] Facts without dispute, Gap evidence, Gap evidence 1, Gap evidence 2-1, Gap evidence 20, Gap evidence 222, Gap evidence 25, Eul evidence 1, Eul evidence 6 (the same as Eul evidence 9), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The Defendant, as a carrier, has the duty of care to safely transport the cargo by fulfilling the duty of care necessary for shipping, loading, loading, storing, etc. of the cargo, thereby causing damage to the entire cargo of this case, which was weakly damaged during navigation. Therefore, the Defendant is liable to compensate the Plaintiff for damage caused by the instant accident due to nonperformance of the duty of care as a carrier or tort.

B. Defendant’s assertion

1) The Hong Kong agreed to resolve the dispute regarding the instant cargo transport by arbitration. Accordingly, the instant lawsuit is an inappropriate lawsuit brought against the arbitration agreement. Since the Plaintiff is a Russia where the instant vessel is loaded, a dispute arising from the instant accident must be resolved in Hong Kong, where a Russia or both parties agree in accordance with the jurisdiction clause of the terms and conditions on the back of the bill of lading.

2) Even if the Defendant’s liability is recognized, the instant cargo was abnormal cargo out of standard form from the time of shipment, and was limited to part of the cargo damaged due to the instant accident, and thus, it should be recognized as damage only to some flooded 186.16 tons and expenses incidental to the handling thereof.

3. Determination on this safety defense

A. In general, in order to transfer an arbitration clause under a charter party to a bill of lading, the provisions that the arbitration clause in the charter party should be stated in the bill of lading that the said clause is “in exchange for the transfer of the bill of lading to the bill of lading,” and the pertinent charter party should be identified as the date of the charter party, the parties, etc. (However, aside from the case where the holder of the bill of lading knows the existence of the pertinent charter party and the contents of the arbitration clause, even if the charter party was not specified by the above method, it is not clear whether the clause in the charter party is included in the object of the transfer. If it is not clear whether the arbitration clause in the charter party is included in the object of the transfer, the transferee of the bill of lading knew or could have known the existence of the arbitration clause in the charter party, and the pertinent provision does not conflict with other provisions in the bill of lading due to the incorporation of the arbitration clause into the bill of lading, and the extent of the arbitration clause in the charter party should be widely applied to the shipowner and the holder of the bill of lading 200.

Examining the case of the instant bill of lading in light of the aforementioned legal principles, there is no provision that the arbitration clause in the charter party is incorporated into a bill of lading or both of the general provisions in the charter party are incorporated into a bill of lading. Since the charter party itself is not specified in the written bill of lading, it cannot be deemed that the said arbitration clause in the instant charter party is incorporated into a bill of lading. The Defendant’s assertion based on the premise that the said arbitration clause was incorporated into a bill

B. According to Article 355(1) of the Civil Procedure Act, a document may be submitted in lieu of the original, original, or certified copy, or a copy itself as an original in lieu of the original. If the other party acknowledges the existence or establishment of the original and objects thereto, a copy may be submitted in lieu of the original in the absence of objection thereto. In such a case, the other party shall be deemed to have the same effect as where the original is submitted. On the other hand, where a copy is submitted as an original, the copy shall be an independent documentary evidence, or otherwise, the original shall not be deemed to have been submitted as an independent documentary evidence. In this case, it shall be recognized that there exists the same original as a copy by evidence and the original has been duly established (see, e.g., Supreme Court Decisions 9Da3824, Nov. 12, 199; 200Da6133, Aug. 23, 2002).

Although the Defendant asserts that “the State of the flag of the vessel or the place agreed between the carrier and the merchant of the instant bill of lading shall be under the jurisdiction of the Republic of Korea” under the back clause of the instant bill of lading, the Defendant did not have jurisdiction over the Republic of Korea; however, the evidence No. 17 (a copy of the back bill of lading) denies the existence and establishment of the original, and each description of evidence No. 18 through No. 21 is insufficient to recognize the existence and establishment of the original, and there is no other evidence to prove the existence and establishment of the original, and as such, evidence No. 17 cannot be used as evidence (the instant bill of lading was recovered by the Defendant, and the Defendant was responsible for submitting the original bill of lading of this case or proving the authenticity of its existence and establishment; the Defendant applied for the issuance of the instant bill of lading of this case as a witness and withdrawn it; the Defendant submitted a copy of the instant bill of lading of this case at the time of the closing of argument; and the Defendant’s assertion that the above issuance of the bill of this case can vary depending on the following grounds.

C. In order for an exclusive international jurisdiction agreement to be valid with a foreign court as a competent court after excluding jurisdiction of the Korean court, the case in question does not fall under the exclusive jurisdiction of the Korean court, and the designated foreign court must have jurisdiction over the case in question under the foreign law, and the case in question requires reasonable relevance to the foreign court. On the other hand, if the exclusive jurisdiction agreement is remarkably unfavorable and unfair, the agreement in question is invalid in that it constitutes a juristic act contrary to public order and good morals (see Supreme Court Decision 2001Da53349, Mar. 25, 2004, etc.).

Even if the terms and conditions of the bill of lading of this case were determined to have jurisdiction over Russia or the place where the parties agreed, as alleged by the Defendant, under Article 2(1) of the Korean Private International Act and Articles 8 and 18 of the Civil Procedure Act, the legal suspension corporation shall be deemed to have legal jurisdiction over disputes arising in relation to the transportation of the cargo of this case between the Plaintiff and the Defendant, as the place of performance of its obligations or the place of tort, and most important methods of evidence necessary for the hearing of this case appear to exist in the Republic of Korea, and the exclusive jurisdiction agreement of this case may be deemed to be detrimental to the interests of one of the parties, and thus, it is necessary to interpret it in a limited manner. Considering the fact that the Defendant is a marine transport company that is engaged in business activities across the whole world, and thus, it seems that the above agreement is an additional agreement to create jurisdiction over the place where Russia or the parties agreed to do so. Thus, even if there exists such agreement, the court of the Republic of Korea has no merit in this regard to the above dispute.

4. Determination of the applicable law;

The Plaintiff, a juristic person established in accordance with the laws of the Republic of Korea and has its principal place of business in the Republic of Korea, filed a claim against the Defendant, who is a Russia, by negligence of the Defendant, for damages, claiming that the instant accident occurred due to the subsidence of sea water by the Defendant. As such, the instant case has foreign elements, and thus

The Private International Act provides that the contract shall be governed by the law of the country where the contract was concluded, explicitly or implicitly selected by the parties, and the law of the country where the contract was most closely connected with the contract, and that the law of the tort shall be governed by the law of the place where the act was committed (Articles 25(1), 26(1), and 32(1)). There is no evidence to conclude that the law applicable to the legal relationship between the Plaintiff and the Defendant, the carrier, who is the holder of the bill of lading of this case, has established the law applicable to the legal relationship between the Plaintiff and the Defendant. However, the Defendant, as a marine transportation company, has a domicile in the Republic of Korea of Korea as the Plaintiff, and the place where the charter contract was concluded is China and the two are fulfilled in the Republic of Korea, and thus, the country most closely connected with the contract is the Republic of Korea. In addition, the place where the tort occurred and the legal interests of the Plaintiff were infringed upon at the time of infringement of legal interests (see Supreme Court en banc Decision 82Meu153, Mar. 222, 1983).

5. Judgment on the merits

(a) Occurrence of liability for damages;

Upon the formation of a contract of carriage, a carrier is obligated to receive the goods at a certain place, transport them to the destination, and deliver the goods to the consignee at the agreed time. A carrier is obligated to take proper preventive measures to prevent damages by way of the loading of the goods in the loading of the goods for the transportation, preventing them from being mixed with or not being mixed with each other, and at the direction of an independent shipper or a consignor, taking appropriate measures to ensure that the loading of the goods is not at fault, and even if the loading of the goods is performed at the direction of an independent shipper or a consignor, the carrier has a duty to take proper preventive measures to prevent damages by examining whether the loading of the goods is appropriate for carriage, and by way of knowing the nature of the goods delivered for the transportation, and as required by the nature of the goods.

갑3호증, 갑4호증, 갑6호증의 1, 갑19호증, 갑20호증, 갑22호증 내지 갑26호증, 을2호증의 1, 2, 3, 4, 을4호증, 을6호증, 을8호증, 을11호증, 을12호증의 각 기재, 갑3호증의 기재 및 영상, 갑21호증의 3의 영상, 한국민테크에 대한 사실조회회신 결과, 증인 소외 1의 증언, 증인 소외 2의 일부 증언 및 변론 전체의 취지에 의하면, 이 사건 화물은 선적 당시 수분 함량 등이 정상적인 화물이었던 사실, 이 사건 화물은 1500°C 이상의 고온에서 생산되는 제품으로 수분이 거의 없고 흡습 성질이 강하며 용광로의 내부 코팅재로 사용되는데 수침된 화물을 사용할 경우 생산 제품에 금이 갈 수 있고 이를 통하여 쇳물이 흘러나오는 2차 사고가 발생될 수 있는 사실, 원고 직원인 소외 1은 이 사건 화물 선적 당시 이 사건 선박의 1등 항해사에게 이 사건 화물이 수분에 매우 민감하므로 수분에 노출되지 않도록 운송에 특별히 주의하라고 요구한 사실, 이 사건 선박의 선령은 19여 년으로 노후화되어 있어 이 사건 선박의 선수 램프와 선창 격벽에 틈새가 있었는데 피고가 이를 실리콘 접착제 등으로 임시로 밀봉해 놓았던 사실, 이 사건 화물 운송 도중 위와 같은 틈새를 통하여 선창 내로 해수가 유입된 사실, 선창 내 해수의 유입을 방지하기 위하여 램프와 선창 격벽 사이의 공간에 유입된 해수를 펌프로 배출하기도 한 사실, 하역작업을 위하여 해치커버 개방 시 해치커버 위에 고여 있던 물이 선창 선미에 적재되어 있던 화물에 떨어져 수침되기도 한 사실, 위와 같은 해수와 담수의 유입으로 이 사건 선박이 울산항에 도착할 당시 이 사건 화물 중 184.79톤이 젖어 있음이 육안상 확인되어 원고가 이를 폐기한 사실, 원고가 나머지 1,063.84톤을 한국민테크에 납품하였으나 한국민테크는 위 1,063.84톤 중 179.31톤을 제품 생산에 투입하였다가 생산된 제품에서 하자가 발생하자 2012. 4. 27. 원고에게 전량 반품을 요청하고 나머지 884.53톤을 반품한 사실, 원고가 2012. 5. 8. 한국세라믹기술원에 이 사건 화물에 대한 성분검사를 의뢰한 결과 샘플당 수분 비중이 3.11%, 0.08%, 2.56%로 기준치 0.02%를 초과한 사실(피고가 검정 의뢰한 코리아검정 주식회사에서 2012. 6. 12. 한국화학융합시험연구소에 이 사건 화물에 대한 표본 분석을 의뢰한 결과 외관상 정상화물로부터 채취한 표본의 수분 비중이 평균 0.02%이고, 외관상 수침화물로부터 채취한 표본의 수분 비중이 평균 0.79%이기는 하나, 위 한국세라믹기술원의 분석 결과와 차이가 크고 수침이 발견된 뒤 50여 일 지난 뒤에 분석한 것이므로 이를 그대로 믿기 어렵다), 물의 표면장력이 크므로 화물 선창 아래쪽으로 해수가 침입하였더라도 삼투압 현상에 의해 화물 전체가 손상되었을 가능성이 높은 사실, 이 사건 화물은 해수에 의해 오염되면 수분이 증발되더라도 해수에 포함되어 있는 소금 성분 때문에 고온에 견디지 못하여 용광로 내부 코팅재 등 고온용 내화제로 사용하기 어려운 사실, 한국민테크는 이 사건 화물이 해수에 침수되어 생산에 투입할 수 없을 정도로 손상되어 있다는 이유로 이 사건 화물의 전량을 반품한 사실, 원고는 한국민테크로부터 이 사건 화물을 전량 반품받은 후 원래의 수입단가보다 20달러 높은 톤당 285달러에 대체상품을 조달하여 한국민테크에 납품한 사실, 원고는 위 잔존물을 수입가 331,250달러(톤당 265달러)보다 훨씬 낮은 59,263.51 달러(톤당 67달러)에 매각한 사실, 원고가 피고에게 잔존물의 적정 가격을 알아보기 위한 공동 조사를 피고에게 제안하고 잔존물의 견적가격(원고는 잔존물 매각을 위하여 3개 업체로부터 이 사건 화물의 잔존가액을 견적받았는데 이들 업체가 제시한 금액은 톤당 50달러에서 70달러 사이였다)과 매각계획을 통보하였음에도 피고가 이에 대한 이의나 의견을 제시하지 아니한 사실이 인정된다.

According to the above facts, the freight of this case was entirely damaged due to the Defendant’s breach of the duty of care, which is the carrier. Thus, the Defendant is obliged to compensate the Plaintiff for all damages incurred by the Plaintiff due to the accident of this case based on the carrier’s default liability

B. Scope of liability for damages

According to the evidence No. 1, No. 4, and No. 5, the plaintiff suffered damages at the market price at the time of the loss of the cargo of this case due to the defendant's violation of the above duty of care, and the market price is USD 271,986.49 ($ 31,250 - USD 59,263.51) calculated by subtracting USD 59,263.51 from the agreed price under the import contract of this case from USD 331,250, which is the price under the freight of this case, unless there are special circumstances. In addition, when the market price denominated in US dollars is converted into Korean currency, it is reasonable to convert it by the basic exchange price at the time of the loss, barring special circumstances, at the time of conversion into Korean currency. Thus, 310,064,598 won ($ 271,986 x 49 x 271,92 x 14, 2012).

According to Gap evidence 7 to Gap evidence 18 (including each number), with respect to the damage of the cargo of this case, the plaintiff is found to have suffered customs duties of KRW 5,704,620, customs clearance fees of KRW 501,930, KRW 1056,091, KRW 724,722, KRW 8800, KRW 376,500, KRW 23,000, KRW 275,200, KRW 38,84,575, KRW 1,00, KRW 40, KRW 500, KRW 500, KRW 500, KRW 100, KRW 456, KRW 568, KRW 468, KRW 46716, KRW 4767, KRW 4767, KRW 7796, KRW 4767, KRW 4767, KRW 4767, etc.

C. Sub-committee

Therefore, the Defendant is obligated to pay to the Plaintiff damages incurred by the instant accident at KRW 384,431,322 (damage 310,064,598 + total incidental expenses + KRW 74,366,724) as damages incurred by the instant accident, and damages incurred by delay calculated at the rate of 20% per annum as stipulated by the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from December 6, 2012 to the date of delivery of a copy of the application for change of the purport of the claim and the grounds for the claim, which the Plaintiff seeks.

6. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge)

1) Egine site (the mineral name of the Maglymium(MgCO3)) is used mainly for the luminous light of steel mills, etc. even at high temperature above 1500 to 1700 C. 2800 C. 2800 C.

Note 2) The import of 1,250 tons from Tin, but the actual quantity was 1,248.63 tons.

3) If the charter contract is concluded, each letter in which the owner of the vessel and the shipper jointly signed and kept.